Wills 
Every adult should have a Will. A valid Will gives you control over how your assets will be distributed after your death and who will make sure this happens. You will also achieve peace of mind that you have not left a mess for your family to clean up.
If you do not make a Will then your assets will pass through the rules of intestacy. This often means that your money and assets don’t go to who you want them to.
So what are the major considerations when thinking about your Will?
What do I own?
Part of Estate Planning is making sure you properly deal with your property in your Will. Some people think that all of their assets will form part of their Estate but this is not the case.
For example it is only if you have no dependants, as defined by the Superannuation Industry Supervision Act (Cth) that your Superannuation will form part of your estate.
To get a comprehensive idea of how your property will be dealt with on your death it is important to get the right advice.
Who do I have to provide for?
In most circumstances it is not hard to figure out whom you have an obligation to provide for. Generally your family (ie. your spouse and children) will be persons who you have an obligation to provide for.
However, in Victoria the class of possible beneficiaries who can make a claim on your Estate is not restricted to your family. Therefore it is important that you talk to somebody who understands and can advise you properly on the law.
Who should be my Executor?
Your Executor or Executors are the people who will manage your Estate. They are charged with the responsibility of administering your funds and assets. The person who administers your estate needs to be an adult and someone who is competent in financial matters. Your Executor will most likely act with the assistance of a lawyer who can guide them through the process.
What if I get married or divorced?
If you made a Will before you were married then it will automatically be revoked after you are married. The same is so for when you are divorced and the decree absolute is issued.
However it is important to note that if you are merely separated your Will is not revoked and you must make a new Will if you do not want the appointments and bequests of the Will made during your marriage to continue.
What happens if I die without a Will?
If you die without a Will you are what is referred to as Intestate. Depending on the size of your Estate a close family member may have to take on the responsibility of applying for Letters of Administration from the Supreme Court on your behalf.
Because you have not left a valid Will, the Government, through legislation, determines how your Estate will be distributed.
Can I successfully challenge a Will?
There are a number of factors which have to be taken into consideration when determining whether or not a claim would be successful.
To make application for further provision under the Administration and Probate Act 1958 (Vic) you must be someone the deceased had a responsibility or obligation to make proper provision for. This includes maintenance and support. The court will then enquire as to whether proper provision has been made under the Will taking into account the considerations outlined in section 91
- The nature of the relationship between the parties, including whether it was familial or other;
- Any responsibilities or obligations that the deceased had to both the applicant and other applicants or beneficiaries;
- The financial situation and needs of the applicant and of any other applicant or beneficiary of the estate. In considering this regard will also be had to any physical or mental disability of an applicant or beneficiary of the estate;
- The age of the applicant;
- The contribution of the applicant to building up the estate and contribution to the welfare of the deceased;
- Whether or not the applicant was being maintained by the deceased at the date of death, the extent of that maintenance and on what basis the deceased assumed that responsibility;
- Whether or not the applicant had received any contribution from the deceased during their lifetime, and if so to what extent;
- Whether anyone else is liable to support the applicant;
- The character and conduct of the applicant and any other person;
- Any matter the court may consider relevant.
Please print off and fill out the following form to bring with you to your initial appointment:
Will Instructions (33 KB)
